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Andrew Timmons
Dr. Alan Gitelson

The Influence of Brady v. Maryland on 21st Century Prosecutors

Last year in 2013, Supreme Court case Brady v. Maryland celebrated its 50th
anniversary. The ruling in Brady v. Maryland states that, in accordance with the due
process laws in the 14th Amendment to the Constitution, a prosecutor must disclose all
evidence, including exculpatory evidence, to the defense. This serves to fulfill the
prosectors duty to pursue justice rather than victory. However, the effectiveness of the
Brady v. Maryland ruling has been widely debated since its inception. Prosecutors have
long since been attacked by criminal defense groups for withholding or delaying the
disclosure of evidence in accordance with Brady laws. This is not surprising as
prosecutors have the least interest in aiding the defense. However, the common claim
that all prosecutors are willfully withholding evidence in order to raise their conviction
numbers has been wildly exaggerated by criminal defense groups. In my research of
Brady v. Maryland I was not surprised to find that the strong majority of academic
articles on the subject were critical of prosecutors cooperation with Brady rules. This
proved interesting to me, as a large portion of my time serving as a law clerk at the

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States Attorneys office has been spent ordering and preparing discovery, evidence
gather by the prosecution to aid in a trial, which will then be tendered to the defense.
The efforts taken to catalog all evidence gathered and the safeguards in place to ensure
no evidence is missed in the tendering process is as extensive as it is important. These
efforts are necessary to preserving the integrity of the judicial system of the United
States. Without access to all materials necessary to a fair trial, the defense becomes
disadvantaged. Without an equal playing field for both prosecutors and defense
attorneys, the entire judicial system becomes flawed.
In order to completely understand the implications of Brady v. Maryland, one
must first be provided with a brief history of the case. The 1963 Supreme Court ruling in
Brady v. Maryland resulted from an appeal from a case in which the defendant, Mr.
Brady, was convicted of murder and sentenced to death 1. The Maryland court that
heard Mr. Bradys case based its ruling of guilty, in part, according to Mr. Bradys own
testimony in which he stated that he had been involved in the killing with another man,
Mr. Boblit. However, during the trial, Mr. Bradys legal team was not made aware of a
statement made by Mr. Boblit before Mr. Bradys trial. In this statement, Mr. Boblit
confirmed that he was, in fact, the killer. With this new evidence, Mr. Brady was granted

1 David A. Moran, Brady v. Maryland, 373 U.S. 83 (1963). (US Civil Liberties, 9-1-12)

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a new sentencing hearing by the state of Maryland. Mr. Brady continued appealing his
case to the Supreme Court, believing that he was entitled to a new trial. The Supreme
Court denied this request, but not without deciding to use Mr. Bradys case to establish
new precedent requiring prosecutors to surrender any exculpatory evidence it gathers to
the defense. The result is, of course, todays Brady obligations. These obligations are
integral to upholding the right to due process granted to citizens by the 14th
While a ruling by the Supreme Court requiring prosecutors to disclose evidence to the
defense that could prove their clients innocence is incredibly exciting to defense
attorneys, the reality of that ruling has not lived up to the buzz. This is evidenced by the
large amount of scholarship that takes prosecutors to task for their lack of upholding
their obligations under the Brady v. Maryland ruling. In his article Litigating Brady v.
Maryland: The Games Prosectors Play, law professor Bennett L. Gershman takes a
decidedly negative account of how prosecutors cooperate with the expectations set for
by the Brady decision. Gershman gives several examples of just how prosecutors
attempt to dodge the obligations stemming from Brady v. Maryland. Early on,
Gershman discloses his opinion on the effects of Brady v. Maryland. By any measure,
Brady v. Maryland has not lived up to its expectations. Bradys announcement of a
constitutional duty on prosectors to disclose exculpatory evidence to defendants

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embodies, more powerfully than any other constitutional rule, the core of the
prosecutors ethical duty to seek justice rather victory. Nevertheless, prosecutors over
the years have not accorded Brady the respect it deserves. 2
Gershman goes on to explain how Brady litigation showcases the sort of legal
gamesmanship typically more associated with civil litigation. 3 Rather than simply
disclosing exculpatory evidence, Gershman claims that prosecutors are guilty are very
loosely interpreting their duties with Brady. One such example of this is in the time it
takes a prosecutor disclose the evidence categorized as Brady evidence. A prosecutor
could potentially withhold any Brady evidence until explicitly requested by the defense. 4
Various prosecutors cooperate with Brady obligations in different ways.

A prosecutor may furnish the defense with all evidence specifically required by
the rules of discovery, as well as all exculpatory and impeachment evidence the
prosecutor believes is required to be disclosed under Brady. Some

2 Bennett L. Gershman, Litigating Brady v. Maryland: The Games Prosecutors Play (Cleveland:
Case Western Reserve Law Review, 2007) 531-565

3 Gershman, Litigating Brady v. Maryland: The Games Prosecutors Play, 533

4 Gershman, Litigating Brady v. Maryland: The Games Prosecutors Play, 534

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may go beyond the strictures of discovery rules and furnish a

defendant with the

entire file of the case, including all potentially Brady

evidence. And some

prosecutors , alert to their Brady obligation, ay

seek the courts assistance in

determining whether and to what extent they

are required to comply with Brady.5

With such a broad variety of ways, it is no wonder that defense attorneys find it difficult
to believe in Brady v. Maryland as a success for a defendants 14th amendment4 right to
due process.
Studying Brady v. Maryland is appealing to a young person serving as a law clerk for
States Attorneys Office precisely due to the fact that the majority of scholarship is so
critical towards the way prosecutors satisfy their Brady obligations. My firsthand
experience in preparing discovery, the evidence gathered for a case, has shown me just
how meticulous the prosecuting attorneys in the Cook County States Attorneys Office
are in preparing discovery to be tendered to the defense. On my first day at the States
Attorneys Office I was made aware of the attorneys Brady obligations. I heard one of
the attorneys that I serve as clerk for mentioning that she did not wanted to be Bradyd.

5 Gershman, Litigating Brady v. Maryland: The Games Prosecutors Play, 535

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The prosecutors in the office are so aware of their Brady obligations that they use the
term as a verb. After hearing about the Brady obligations, I was intrigued by how much
work the prosecution must do in order to help the defendant. It seemed, and still
seems, ludicrous that the states prosecutors would be required to give evidence that
could, if used incorrectly, help defense attorneys keep a criminal out of jail and put him
or her back on the streets. However, after experiencing time in the court room I can see
why Brady obligations are necessary. Even though I work for the prosecution, I can
recognize just how necessary public defenders are to the legal system. Without being
provided attorneys, many innocent people could be exploited and sent to jail simply
because they are not wealthy. However, sometimes public defenders are so
overworked, especially in major cities like Chicago, they cannot give their client the best
of their abilities. With Brady v. Maryland putting responsibility on the prosecutors
shoulders to provide exculpatory evidence, public defenders jobs are made easier in
making sure their clients rights are respected. This recognition made studying Brady v.
Maryland even more interesting and rewarding in regards to my internship experience
serving as a law clerk.
My day-to-day responsibilities at the States Attorneys Office are centered around
making the jobs of the attorneys I work for easier. This includes opening all incoming
discovery and immediately making copies that will be given to the defense. Gershman

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makes mention that some prosecutors give all discovery to the defense as soon as they
receive it. This is especially true for the attorneys I have had the opportunity to work
with. The mentality in my office is that if the discovery is held on to for too long, it is
possible for it to go missing. If discovery goes missing and is not tendered to the
defense, the prosecuting attorney could be at risk of violating his or her Brady
obligation. When opening new discovery, I immediately fill out a receipt, detailing
exactly what was received and the amount of discovery received. Next, I make copies
of everything, including the discovery receipt. After I am finished, I place the discovery
in the case file and set it on the desk of the attorney handling the case. The attorney
then marks on the cases blueback, what attorneys use to keep track of the details of a
case, what discovery was received and makes a note to make sure to tender it at the
next court date. This detailed process is necessary to ensuring that nothing is missed
when preparing a case.
In short, my summer internship as a law clerk has been spent helping to ensure
that the attorneys I work for fulfill their Brady obligations. Not only have I learned how
the legal system works, I have also been able to understand the ethical meanings
behind its operations. The fact that so many academic articles are published with a
negative view of how prosecutors fulfill their Brady obligations is distressing. My

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observations of prosecutors in the States Attorneys Office have given me the
impression that Brady obligations are respected as much as they are revered.

Works Cited

Bennett L. Gershman, Litigating Brady v. Maryland: The Games Prosecutors Play (Cleveland:
Case Western Reserve Law Review, 2007) 531-565
David A. Moran, Brady v. Maryland, 373 U.S. 83 (1963). (US Civil Liberties, 9-1-12)